Academic journal article The Cato Journal

F. A. Hayek and the Common Law

Academic journal article The Cato Journal

F. A. Hayek and the Common Law

Article excerpt

One of the most significant insights into the history of Anglo-American law offered by F. A. Hayek concerns the superiority of common over statute law in framing a free society.

Hayek's Legal Theory

English common law, like much medieval law, Hayek maintained, reflected the underlying notion that law was not so much created as uncovered and that its principles were identical to the fundamental canons of justice upon which all free societies rest. (1) It was this view of law that predominated in England until the 15th and 16th centuries, when for the first time the European nation states sought to use legislation to effect specific policies. (2) As Hayek maintains (1973: 83):

   Until the discovery of Aristotle's Politics in the thirteenth
   century and the reception of Justinian's code in the fifteenth ...
   Western Europe passed through ... [an] epoch of nearly a thousand
   years when law was ... regarded as something given independently of
   human will, something to be discovered, not made, and when the
   conception that law could be deliberately made or altered seemed
   almost sacrilegious. (3)

The reason why England, unlike the continental countries, did not develop a highly centralized absolute monarchy in the 16th and 17th centuries, he argues, was its distinctive system of legal rules and procedures. "What prevented such development," writes Hayek (1973: 84-85), "was the deeply entrenched tradition of a common law that was not conceived as the product of anyone's will but rather as a barrier to all power, including that of the king--a tradition which Sir Edward Coke was to defend against King James I and his Chancellor, Sir Francis Bacon, and which Sir Matthew Hale brilliantly restated at the end of the seventeenth century in opposition to Thomas Hobbes."

Indeed, according to Hayek, all early conceptions of law took this form, that law was unalterably given and that while legislation might attempt to purify the law of its accumulated corruptions it could not go beyond this to make completely new law. Thus, the great early lawgivers, those semimythic figures of which early civilizations boasted, among them Ur-Nammu, Hammurabi, Solon, Lykurgus, and the authors of the Roman Twelve Tables, did not set down new law but rather codified what the law was and had always been (Hayek 1973: 81). The law, as originally understood, stood above and separate from the will of the civil magistrate and bound both ruler and ruled. This notion of law as residing in the unwritten rules that governed social interaction in the community was particularly true of England, where, Hayek contends, the ordinances of the Norman and Angevin monarchs played a more muted role in shaping social regulation and where the law administered by the king's courts had its origins in the judicial articulation of preexisting rules and practices that were common to the community.

As cases were brought before the common law courts, judges sought precedents for their decisions in the principles that had been laid down in earlier cases. This doctrine of stare decisis bound judges to apply similar principles in analogous cases. However, this development of the common law, Hayek noted, did not entail that it remained static and unchanging. The law did indeed change, through its application to new circumstances and through variations in interpretation that emerged in specific legal decisions. Common law thus evolved over time as judge-made law, the product of countless judicial decisions each having a specific end in view but the whole body of which reflected no deliberate intention or plan. Like language, common law formed a spontaneously generated arrangement, the product of human action but not of human design (Hayek 1973: 81).

The reason why England was the object of such great admiration by Europeans in the 18th century, according to Hayek (1973: 85), was because the law administered in its courts was the common law, which existed, he argues, "independently of anyone's will and at the same time binding upon and developed by the independent courts; a law with which parliament only rarely interfered and, when it did, mainly only to clear up doubtful points within a given body of law. …

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